C BOGGIANO AND CO Vs. ARAB STEAMERS LTD

JUDGEMENT

(1.) The defendant Steamer Company entered into an agreement, on the 1st April 1915, with the firm of Chhagandas and Company whereby the latter chartered the steamer "Hejaz" for a voyage, Bombay to Naples, Genoa and or Marseilles, any two discharging ports at charterer s option. On the 14th April, the "Jeddah" was substituted for the "Hejaz." The plaintiffs procured from Chhagandas and Company freight for 2,500 bales of cotton on the said steamer and were given the shipping orders which they presented to the defendants. The 2,500 bales were put on board the "Jeddah" and twenty-five bills of lading relating to them were issued by the defendants, who were paid Rs. 32,610-6-2 for freight. Owing, however, to the import of cotton into Genoa being prohibited by orders of Government, the "Jeddah" did not leave the harbour and the voyage had to be abandoned. Negotiations were entered info with the various shippers of cotton, which are set out in the correspondence annexed to the pleadings, but eventually the Jeddah unloaded her cargo in the Alexandra Dock. Before getting delivery of their cottoh the plaintiffs were asked to deposit Rs. 12,000 to cover the expenses and loss incurred by the ship and this sum was paid. The plaintiffs, thereupon, demanded the return of the amount paid by them for freight, but the defendants claimed that under the events which had happened they were entitled to retain the money and especially relied upon the second slip attached to the shipping orders. The plaintiffs, therefore, filed this suit to recover the freight and for an account of the Rs. 12,000 paid by them to defray the costs of unloading. If the Indian Contract Act applies, the contract became void under Section 56 of the Act and the defendants were bound, under Section 65, to restore to the plaintiffs the advantage they had received under the contract.

(2.) But it has been contended, first, that money paid in advance for freight is irrecoverable at law; secondly, that the defendants are common carriers and that under the decision of the Privy Council in the case of Irrawaddy Flotilla Company v. Bugwandas 18 C. 620 the rights and liabilities of common carriers are outside the Indian Contract Act and are governed by the principles of English Law as modified by the Common Carriers Act of 1865.

(3.) By the policy of the law of England freight and wages, strictly so called, do not become due until the voyage has been performed. But it is competent to the parties to a charter-party to covenant by express stipulation in such manner as to control the general operations of law: per Lord Ellenborough, C.J., in De Silvale v. Kendall (1815) 4 M. & S. 37.